Opinion
Ind. No. 70130/2022
09-21-2022
The People of the State of New York v. Nelson Jorge, Defendant.
For the People: Melinda Katz, District Attorney, Queens County (Serena Nguyen, Esq., Of Counsel) For the Defendant: Judah Maltz, Esq.
Unpublished Opinion
For the People: Melinda Katz, District Attorney, Queens County (Serena Nguyen, Esq., Of Counsel)
For the Defendant: Judah Maltz, Esq.
HON. CASSANDRA M. MULLEN, J.S.C.
A Dunaway / Wade hearing was held before this Court on August 17, 2022. The People called two witnesses at the hearing, Detective Vu Nguyen and Detective Matthew Kilfoyle, whose testimony the Court finds to be credible. This decision summarizes the testimony below, as the Court's findings of fact, and constitutes the Court's conclusions of law.
Findings of Fact
On December 12, 2021, Police Officer Vu Nguyen, an officer with the NYPD's Queens Transit Robbery Squad, began investigating an assault that occurred on the F Train that afternoon. The complainant, Morgan Lee, informed Officer Nguyen that an individual approached him on the subway car and struck him on the face with a water bottle. Officer Nguyen also spoke with James Richburg, a subway conductor, who stated that he saw a male approach Mr. Lee and hit him in the face with a bottle. Mr. Richburg described the assailant as a white or Hispanic male who was approximately five and a half feet tall. According to Mr. Richburg, the assailant was wearing jeans and a bright blue jacket. He boarded the train at the 21st Street station and exited at the Jackson Heights Station.
Officer Nguyen, as part of the investigation, obtained approximately one minute of video surveillance footage of the subway platform at the Jackson Heights station on the afternoon of December 12. The video depicted numerous people waiting on the subway platform. Officer Nguyen showed it to Mr. Richburg to see if he recognized anyone. Mr. Richburg identified an individual wearing jeans and a blue jacket as the person who struck the complainant. Officer Nguyen sent a still image of the individual to the NYPD Facial Identification Section ("FIS") to check whether that individual matched anyone in the FIS database. FIS reported that the individual matched someone in their system, defendant Nelson Jorge, and provided his name, date of birth, and arrest history. Between December 24 and December 26, Officer Nguyen emailed a copy of the still image to two police officers who had each previously arrested defendant in order to confirm his identity. Each officer stated that the individual was Nelson Jorge and that they had each arrested him before. As a result, Officer Nguyen issued an investigation card ("I-Card") for Nelson Jorge which indicated that there was probable cause to arrest him in relation to the assault case.
On January 10, 2022, Officer Nguyen created a photo array featuring defendant's photograph, which had been obtained from the NYPD system, in position two. He asked another police officer with the Queens Transit Robbery Squad, Matthew Kilfoyle, to administer the photo array to James Richburg. Officer Nguyen told Mr. Richburg that Officer Kilfoyle would meet him at the Parsons-Archer Avenue subway station and show him some photographs. He did not provide Mr. Richburg or Officer Kilfoyle with any details about the suspect or the photo array. On January 11, 2022, Officer Nguyen arrested defendant. Two days later, Officer Kilfoyle met with Mr. Richburg in an employee corridor at the Parsons-Archer Avenue subway station to administer the photo array. Officer Kilfoyle read the instructions to Mr. Richburg and then showed him the photo array. Mr. Richburg identified defendant as the person who struck the complainant on the train. He stated that he was "very certain" that defendant was the assailant.
Conclusions of Law
A. Legality of Defendant's Arrest
As an initial matter, the Court finds that the People have established that probable cause existed for defendant's arrest on January 11, 2022. It is well settled that the police have probable cause to arrest an individual when they have "information sufficient to support a reasonable belief that an offense has been [committed] or is being committed or that evidence of a crime may be found in a certain place." People v Jones, 202 A.D.3d 821, 825 [2d Dept 2022]. While mere suspicion or conduct equally susceptible to innocent or culpable interpretation is not sufficient, probable cause does not require proof beyond a reasonable doubt. People v Alexander, 200 A.D.3d 790 [2d Dept 2021], lv denied 37 N.Y.3d 1159 [2022]; People v Kamenev, 179 A.D.3d 837 [2d Dept 2020], lv denied 35 N.Y.3d 1027 [2020]. Considering the totality of the circumstances (People v Geddes, 171 A.D.3d 1210 [2d Dept 2019], lv denied 33 N.Y.3d 1069 [2019]), the surveillance video identification of defendant by Mr. Richburg and the defendant's appearance in the subway surveillance video, along with the complainant's statements and other "circumstantial evidence linking defendant to the scene of the crime," established probable cause for Officer Nguyen to arrest defendant. People v Johnson, 195 A.D.3d 526, 526 [1st Dept 2021], lv denied 37 N.Y.3d 1097 [2021]; see also People v Tyler, 201 A.D.3d 1371, 1372 [4th Dept 2022], lv denied 38 N.Y.3d 1010 [2022]; People v Jackson, 168 A.D.3d 473, 473-74 [1st Dept 2019]; People v Young, 152 A.D.3d 981 [3d Dept 2017]; People v Bethune, 65 A.D.3d 749 [3d Dept 2009].
B. Suppression of Identification Evidence
When a defendant seeks to suppress identification evidence, the People bear the initial burden of "establishing the reasonableness of the police conduct and the lack of any undue suggestiveness." People v Sosa-Marquez, 177 A.D.3d 1003, 1004 [2d Dept 2019]. Once the People meet this burden, the defendant "bears the ultimate burden of proving that a pretrial identification procedure was unduly suggestive." People v McDonald, 138 A.D.3d 1027, 1028 [2d Dept 2016].
1. The Surveillance Video Identification
It is not unduly suggestive for the police to show a witness a surveillance video depicting the defendant as long as the defendant is "not singled out, portrayed unfavorably, or in any other manner prejudiced by police conduct or comment, or by the setting in which the defendant was taped." People v Hall, 168 A.D.3d 761, 762 [2d Dept 2019], lv denied 33 N.Y.3d 976 [2019]; see also People v Edmonson, 75 N.Y.2d 672, 676-77 [1990]; People v McGhee, 194 A.D.3d 498, 499 [1st Dept 2021], lv denied 37 N.Y.3d 973 [2021]; People v Davis, 115 A.D.3d 1167, 1169 [4th Dept 2014], lv denied 23 N.Y.3d 1019 [2014]. In this case, there is nothing in the surveillance video that portrays defendant unfavorably or unfairly singles him out from any of the other persons featured in the surveillance video. There were numerous people standing on the subway platform near defendant. In addition, there is no evidence that the police made any comments to Mr. Richburg that "impermissibly singl[ed] out defendant" as the likely culprit. See McGhee, 194 A.D.3d at 499. Rather, the testimony at the hearing indicated that Mr. Richburg identified defendant in the surveillance video without any prompting from Officer Nguyen. Accordingly, the Court declines to suppress the identification of defendant in the surveillance video.
2. The Photo Array Identification
A photo array is unduly suggestive if "some feature or characteristic of one of the depicted individuals is so unique or distinctive that it draws the viewer's attention to that photograph, thereby indicating that the police have selected that particular individual." People v Bowman, 194 A.D.3d 1123, 1126 [3d Dept 2021], lv denied 37 N.Y.3d 963 [2021]. While the various persons included in a photo array must be sufficiently similar in appearance to the defendant (People v Lago, 60 A.D.3d 784 [2d Dept 2009]), there is no requirement that they be "nearly identical in appearance" to the defendant. People v Chipp, 75 N.Y.2d 327, 336 [1990]; see also People v Staton, 28 N.Y.3d 1160 [2017] [photo array was proper although defendant was older than other fillers]; People v Linear, 200 A.D.3d 1498 [3d Dept 2021], lv denied 38 N.Y.3d 951 [2022] [photo array was proper even though defendant was the only bald person featured]; People v Marryshow, 162 A.D.3d 1313 [3d Dept 2018] [photo array was not suggestive despite differing skin tones of the persons featured]; People v Quintana, 159 A.D.3d 1122 [3d Dept 2018] [photo array was not unduly suggestive even though defendant's neck tattoo was partially visible].
The Court concludes that the photo array procedure in this case was not unduly suggestive, as "nothing about defendant's [appearance] was likely to unduly draw the viewer's attention to his photo or indicate that he was the perpetrator of the charged crimes." People v Serrano, 173 A.D.3d 1484, 1487 [3d Dept 2019]. The photo array displayed to Mr. Richburg featured individuals similar in age and general physical characteristics to those of the defendant and were not exhibited to the witness in a suggestive manner. See People v Richardson, 200 A.D.3d 984 [2d Dept 2021], lv denied 38 N.Y.3d 930 [2022]; People v Bell, 188 A.D.3d 904 [2d Dept 2020], lv denied 36 N.Y.3d 1049 [2021]. In fact, Officer Nguyen "took reasonable steps to conceal the difference" between defendant and the fillers by covering the right eye of each individual in the photo array and adding a marking under each of their left eyes. See People v Dunaway, 207 A.D.3d 742 [2d Dept 2022]; People v Costan, 197 A.D.3d 716 [2d Dept 2021], lv denied 37 N.Y.3d 1095 [2021]; People v Perry, 133 A.D.3d 410 [1st Dept 2015] ["a simple eye patch provided to each of the lineup participants or a hand over an eye would have sufficed to remove any undue suggestiveness of the procedure"]; People v Means, 35 A.D.3d 975, 976 [3d Dept 2006] [suppression properly denied when "the police placed a strip of white tape on the neck of each male depicted because of the presence of a distinctive tattoo on defendant's neck"]. In addition, any possibility of undue suggestiveness was mitigated by the fact that the detective who conducted the photo array procedure had no information concerning details or the suspects of the investigation. See People v Pleasant, 149 A.D.3d 1257 [3d Dept 2017]. Finally, photo array procedure was not rendered unduly suggestive by the earlier surveillance video viewing. The photo array was shown to Mr. Richburg nearly one month after the initial surveillance video identification procedure and used a different image of defendant. See People v Greene, 87 A.D.3d 551 [2d Dept 2011], lv denied 19 N.Y.3d 864 [2012] ["Two separate showings of a suspect's picture in successive photographic arrays are not per se impermissibly suggestive, particularly where, as here, a different photograph of the defendant was used"]; People v Dunlap, 9 A.D.3d 434, 435 [2d Dept 2004]. Thus, since the photo array procedure was not unduly suggestive or likely to taint the witness's identification testimony, the Court finds no basis to suppress the photo array identification.
Accordingly, defendant's motion to suppress identification evidence is denied.
This constitutes the decision and order of the Court.
The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.